A Court of Two: Supreme Court Takes Up Health Care With Scalia and Kennedy In The Spotlight

This week, the Supreme Court will take up its historic three-day consideration of the health care law. My Supreme Court class will be spending two weeks on the four insular issues before the Court, including the question of federalism.

For a prior column on my view of the federalism question, click here.

As I have previously noted, it is not simply Justice Kennedy but Justice Scalia that will be the focus of attention in these oral arguments. In order to support the states, Scalia will have to distinguish past statements embracing broad interpretations of federal jurisdiction. For all intents and purposes, this could be an argument before a court of two with the parties striving to lock in both Scalia and Kennedy.

It is a closer case because of the refusal of Justice Kagan to recuse herself. I have previously said that I believe there are strong arguments to be made for such recusal by Kagan. If the Administration prevails, her participation will always be viewed in history as problematic by many.

I have stated before that I believe that the cases favor Congress in the lower courts, but that there is strong precedent on both sides. Obviously, both challenging the law are emphasizing United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995) and United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000). The Court stated in Morrison that it would not accept “the argument that Congress may regulate noneconomic, violent criminal conduct based solely on the conduct’s aggregate effect on interstate commerce.” Id. at 617. In Lopez, the Court required more than what Professor Fried appears to demand in the nexus to support federal authority. In striking down the Gun-Free School Zones Act, the Court found that the claim could not be sustained “under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.” Lopez, 514 U.S. at 561. Again, the question as stated by Chief Justice Marshall is whether this claim conforms with “the letter and spirit of the constitution.”

As I have stated, people of good faith can disagree on these points and the matter cannot be fully resolved until put before the Supreme Court. Most people anticipate that Justice Kennedy will be the swing vote on a close decision. In both Lopez and Morrison, Kennedy voted to strike down the laws. However, in his concurrence, Kennedy did note that the history and language of the Constitution “counsels great restraint before the Court determines that the Clause is insufficient to support an exercise of the national power.” Moreover, Kennedy did vote to uphold the Controlled Substances Act in Gonzalez v. Raich, 545 U.S. 1 (2005). He agreed that, absent the authority, Congress could not regulate drugs. I am frankly not convinced that the same nexus can be established here.

There is also some question over Justice Scalia’s view since he also concurred in Raich. In that decision, Scalia noted that “[u]nlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. . . . Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce.” However, he also found that “[t]his is not a power that threatens to obliterate the line between “what is truly national and what is truly local emphasis added.”

I view the health care legislation as presenting a new type of federal claim and one that could leave few things as protected by federalism by expanding Congress’ enumerated powers to an unprecedented scope.

94 thoughts on “A Court of Two: Supreme Court Takes Up Health Care With Scalia and Kennedy In The Spotlight”

  1. commoner:

    “Everyone finally gets insurance and the costs of uninsured medical care is drastically lowered.”

    That is not necessarily going to bring the costs of insurance premiums down; while the costs to the insurer may go down, the insurer is under no obligation to pass that saving along to the customer.

    The insurance companies CAN just opt to charge more and more and more for their premiums so they can give bigger and better salaries and bonuses to their top executives.

  2. Bron, Firefly:

    You do have a point. I don’t know that you are right though. In fact many doctors and insurance companies are quite worried about ACA. They believe that it will destroy them. They may just be dumb and paranoid and your more cynical analysis is correct. However let’s say you are right and Obama, the Senate and congress is in the pocket of health insurers. Isn’t the end result the same? Everyone finally gets insurance and the costs of uninsured medical care is drastically lowered.

    However the current policies of the insurance and thus the entire healthcare system is currently controlled by insurance companies. The policies are unfair and are helping to bankrupt our Nation in my opinion. Thus, the entire system is no longer a viable option.

    Here is a quote from the Slate article I mentioned above:

    “According to a May 2009 study by Families USA, a nonprofit consumer group, the annual cost of uncompensated care is about $73 billion, of which $30 billion is paid by government and charity. The remaining $43 billion is passed onto health insurers, thereby raising the average family insurance premium by $1,017 annually, about 8 percent of the average family premium. Families USA calls this a “hidden health tax.””

    That 73 BILLION dollar number most of which is carried by families, is simply unacceptable. With the aging of the Baby Boomers, that number will skyrocket without the reforms .

  3. Bron:

    “that is an interesting prediction, how did you come by that? What makes you think so?”

    All one has to do is study history, follow the money and follow Obama’s record so far.

    Everything for the past 30 years — and with increasing intensity, lately — has led away from providing a fair and secure safety net for Americans and TOWARD helping the corporate interests. Laws and regulations put in place during the FDR years to protect us from the greedy among us have been demolished and/or turned on their head and redesigned to help the wealthiest, the Medicare prescription drug plan was mostly a gift to the pharmaceutical companies, and Obamacare is a gift to the health insurers. With the Citizens United decision in place, money is now more corrupting than at any time since the days of the robber barons, and I don’t see that ruling being overturned any time soon, do you? Who in Congress is going to vote to stop the flow of money into his or her own pockets?

  4. Lyle Denniston Reporter

    Posted Tue, March 27th, 2012 12:20 p
    Argument recap: It is Kennedy’s call


    If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., along with him. But if he does not, the mandate is gone. That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.

    If the vote had been taken after Solicitor General Donald B. Verrilli, Jr., stepped back from the lectern after the first 56 minutes, and the audience stood up for a mid-argument stretch, the chances were that the most significant feature of the Affordable Care Act would have perished in Kennedy’s concern that it just might alter the fundamental relationship between the American people and their government. But after two arguments by lawyers for the challengers — forceful and creative though they were — at least doubt had set in. and expecting the demise of the mandate seemed decidedly premature. SCOTUS blog

  5. firefly:

    that is an interesting prediction, how did you come by that? What makes you think so?

  6. Brooklin Bridge:

    Obama is a statist and he knows how to use the law. If it is declared constitutional, there will be government funded universal care, eventually.

    Some of the provisions are good, keeping children on policies until 26 is one. That isnt much of a risk for most insurers since 26 year olds are healthy. But it is something.

  7. If he had it wouldnt have passed. He is going about it through the back door. I wouldnt worry, if the Supreme Court says it is constitutional it will be a few years until government is providing universal care for all citizens.

    Yea just as soon as Santa Claus and the eight tiny reindeer deliver all the presents…

  8. Obama care will never lead to single-payer healthcare or Medicare-for-all.

    Much more likely is that declaring the individual mandate of Obamacare Constitutional will lead to the PRIVATIZATION of Medicare and Medicaid — and the insurance companies are delirious with joy in anticipation of the riches that would bring them.

  9. Brooklyn Bridge:

    “It’s impossible to give you sixty names and you know it because Obama never wanted 60 votes or 30 votes or 20 votes or 10 votes or even one single vote for the public option and he proved that by never giving one single solitary speech — he was so famous for — on it’s behalf. That is, once he was elected.”

    If he had it wouldnt have passed. He is going about it through the back door. I wouldnt worry, if the Supreme Court says it is constitutional it will be a few years until government is providing universal care for all citizens.

  10. Brooklyn Bridge:

    “S.Mom, this isn’t about health insurance companies; it’s about fascism.”

    you got that right but with one minor criticism.

    S.Mom, this isn’t about health insurance companies; it’s about statism.

    Now it is correct.

  11. Dr Rosemary Eileen McHugh, M.D.,M.B.A., Chicago, Illinois:

    In a free society you would have the right to start a company that does just that.

    You seem to be well qualified to start a medical insurance company that would operate under your premises, why havent you? Why havent others?

    Forcing people into a single payer government system is not in the best interest of a free society.

  12. People argue that hospitals pick up the slack for anyone without insurance, including many illegals. Again I do not want to slight anyone. I love Latinos. However it breaks my heart to see people bringing in their kids with an earache
    or something to the emergency room. It is wrong to make someone wait 5 hours to see a doctor for their kid. Hospitals are not exactly the best place for a little kid to be. Or the elderly for that matter. MRSA or methicillin-resistant staphylococcus is a big problem in hospitals. Also, the tendency of hospitals is to send you home if you are not dying or seriously ill.They cannot treat a patient completely. They cannot properly treat the mentally ill in my opinion. I include run of the mill depression/anxiety that so many people have in the mentally ill category. They cannot give you the expensive drugs you need for whatever ails you. It is also wrong to force people to wait until they are sick enough to be admitted to the hospital before receiving care.

    Also it can be argued and this in my opinion is the most pressing issue with this subject is that DENYING HEALTHCARE IS BAD FOR THE ECONOMY.


    I think that the economic savings will ultimately be enormous under ObamaCare or ACA. I also think that denying healthcare to illegals is dead wrong if only for economic reasons.

  13. I believe that Obama and Hillary have the right idea. Here in Maryland we have MHIP which is a permanent state option and now also the federal temporary option until ACA goes into effect. The state and federal MHIP is excellent insurance, better in some ways than my current business plan HMO. I believe that Michael Murray raises a very good point in that it is quite possible to have cheap excellent insurance through the government, Not all national healthcare plans end up like Canada’s.

    I further believe that it is inhumane to deny anyone insurance and thus healthcare for any of the following reasons, some of which overlap:

    1. You are poor. I know of people who are honest and hardworking and their business even offers a plan, but they are just too poor to afford the high premiums and deductibles. That’s horrible.

    2. You are old. Old people have very expensive insurance They also are more likely to have a preexisting condition.

    3. You are fat. You can be denied healthcare for being obese just as you can be denied life insurance for the same reason.

    4. You have a preexisting condition. Many millions of people have this problem. I personally have a medical condition with my back that requires medicine, CT scans, MRI’s etc. I have personally been denied health insurance by Blue Cross for this reason. I had to go on MHIP until I got back on a work plan.

    5. You have a family. Health insurance goes way up when you have a spouse and dependents. The likelihood of a preexisting condition also is much higher in a group.

    6. You are here illegally. I know this is a sensitive subject, but we have millions of Latinos here illegally. I work with Latinos every day and I could not ask for better coworkers and friends. I know Obama said that illegals will not be eligible for affordable reasonable (non-exclusionary) ACA healthcare. That is WRONG. It is immoral and inhumane to tell people that they can stay here but not have affordable readily available healthcare. Which leads to my next comment.

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